' ATTAULLAH KHAN, J.--- The. Accused-appellants Gulab Khan and Rafique were tried by learned Additional Sessions Judge-1I/Judge Special Court, D.I. Khan and vide judgment dated 8-9-2008, they were convicted to life imprisonment under section 9(c) Control of Narcotic Substances Act, and to pay the fine of Rs,50,000 (Rupees fifty thousand) each, or in default of payment of fine, to undergo one year's S.I. The said judgment has been assailed in this appeal.
2. Briefly stated the facts are that the police party was present on "Gasht" on Dera-Daraban Road on 15-3-2006. During Naqabandi, a Pick-up bearing No, LMA-59 was stopped. Three persons were found seated in the said vehicle. They disclosed their names as Rafique driver, Gulab Khan both appellants and Khan Zaman. The police party searched the vehicle and recovered from secret cavities of the door on driver side two packets of opium wrapped in plastic. In the secret cavities of the second door, two other packets were recovered while from the cavities in the body of the vehicle, five more packets were recovered. Each packet was found of five kilogram and total opium of 45 (forty-five) kilograms was recovered. All the three persons were arrested and case was registered. Samples were taken and sent for chemical examination. The report of the Laboratory is on file which is in positive. After completion of investigation, the case was put in Court.
3. Charge was framed on 13-9-2006 against the appellants along with co-accused Khan Zaman.
The trial Court recorded the statements of seven witnesses. The statements of accused were also recorded in which they denied the charge.
4. After hearing the arguments, the impugned conviction was recorded.
5. Arguments of learned counsel for the appellants and Deputy Advocate-General heard and record on file perused, in the light of which our discussion is as under:---
6. Learned counsel for the appellants stressed upon the ground that the prosecution has failed to prove the conscious knowledge of the contraband in the vehicle because there is no evidence available to show that the appellants had knowledge of presence of contraband in the secret cavities and according to the learned counsel, mere presence of the accused at the time of occurrence without any knowledge of the presence of contraband and conscious possession cannot be basis of conviotion. He further argued that no independent evidence is available to connect the appellants with the offence.
7. On the other hand, the learned Deputy Advocate-General contended that both the appellants along with absconding accused were apprehended on the spot and in their presence, huge quantity of contraband of 45 kilograms was recovered from the vehicle which was driven by one of the appellants and the other seated as passengers. The Laboratory report is also in affirmative and there is no defect or material contradiction in the evidence to create doubt, therefore, both the appellants were correctly convicted by the trial Court.
8. There is no doubt that opium weighing 45 (forty-five) kilograms was recovered from three cavities in the vehicle. Accused Rafique was driving the vehicle while accused Gulab Khan was also present in the vehicle. It is also on record that the contraband recovered is proved to be opium and is in huge quantity no doubt.
9. The moot question to be resolved is whether the appellants had conscious knowledge of the contraband or not? The word possession implies a physical capacity to deal with the thing as one likes to the exclusion of anyone else and a determination to exclusion that physical possession on one's own behalf. It implies dominion over an object that he has it and that he can exercise it.'
Possession, therefore, must be conscious and intelligent possession and merely the physical presence of the accused. The statements of both the appellants in this case are relevant. The appellant Gulab Khan has taken the plea that he was mere travelling as a passenger from Tank to Zhob in the vehicle and had no knowledge of the narcotics or secret cavities in the vehicle. He has pleaded innocence. Same is the statement of Muhammad Rafique appellant who was driving the vehicle. Rafique appellant has taken the pleas that he was merely travelling as passenger.
10. We would first take the case of the appellant Gulab Khan. According to his statement under section 342, Cr.P.C. He was travelling as passenger in the vehicle and has got no concern with the vehicle or the contraband. There is an application on record duly filed by Gulab Khan appellant through his brother namely Qismat Khan addressed to Superintendent of Police Investigation.
Affidavits to this effect are also available on file. In the said application and affidavits it is stated that the said appellant was waiting in the Bus Stop Tank for a Bus when in the meanwhile the vehicle being driven by Rafique came there. The appellant asked him as to whether he was going to Dera to which he replied that first he would go to Dera and then to Zhob. In this way he boarded the vehicle and then the occurrence took place on Dera-Daraban Road. In his application, he has pleaded his innocence and also said that Rafique appellant is the friend of absconding co- accused Khanzaman and the opium was owned by them. He has shifted the burden to his coappellant/accused.
11. It is also in the evidence that the Investigating Agency has not tried to find out the real owner and instead they have relied upon the material against the present accused. The fatal question would be conscious possession and knowledge of contraband. Unless these two facts are proved, the accused-appellants cannot be connected with the guilt. The entire record discloses that the contraband has been recovered from the secret cavities of the vehicle being driven by Rafique appellant because it is in the evidence of the prosecution that Rafique was driving the vehicle at the time of occurrence. There is nothing on record to show that appellant Gulab Khan had any knowledge about the contraband. No evidence is available to this effect that Gulab Khan appellant being companion of Rafique driver had any conscious knowledge of presence of contraband in the vehicle and that they had joint possession of the recovered contraband. So, here a doubt arises to the extent of participation of Gulab Khan appellant. As referred to above, the application submitted by brother of Gulab Khan to Superintendent of Police also creates a stance that the contraband belonged to Rafique appellant and the absconding co-accused Khanzaman and this fact finds corroboration from the abscondence of the said Khanzama who is still at large. There is nothing regarding the ownership of the contraband recovered from the secret cavities of the vehicle. The case of Gulab Khan appellant is that he was present in the vehicle from which recovery was made and in our opinion his mere presence would not be enough for his conviction in the absence of reliable evidence about the transportation of opium. His presence in the vehicle could not be held to be enough to convict him in the absence of proof that he was transporting contraband. Careful examination of the evidence would suggest that the appellant Gulab Khan is not connected with the offence as conscious possession, knowledge and ownership is not proved on his part. So on the available evidence, appellant Gulab Khan cannot be convicted.
12. As far as the case of Rafique appellant is concerned, it is different from appellant Gulab Khan, Rafique appellant at the relevant time was driving the vehicle. It is proved from the recovery memo.
Exh.P.C. Vide which driving licence in the name of appellant Rafique was recovered and taken into possession by the police along with registration of the vehicle. The recovery of driving licence in the name of appellant Rafique and registration, though in the name of some other person, are sufficient materials to conclude that Rafique was driving the vehicle and he was doing so with the implied permission of his owner. Moreover, the said appellant has taken a conflicting plea in his statement recorded under section 342, Cr.P.C. It reads as under:--- "I am innocent and have been falsely charged for the reason having agitated in the cross- examination of the P. Ws. I was merely travelling in the vehicle as a passenger and the prosecution has not been able to bring on record any incriminating evidence and my concern with the owner, a driver of the vehicle."
' The above statement negates the circumstances. From his person driving licence was recovered.
He failed to name the driver. In the absence of such proof, it is abundantly clear that he was driving the vehicle. Being so, it can very safely be inferred that he is responsible for the secret cavities, was in the knowledge of presence of opium therein and thus, knowledge stands proved. In this way case of the Rafique appellant stands on different footing as he was in exclusive possession of the vehicle and was in the knowledge of the secret cavities and it would be deemed to be in exclusive possession of the opium recovered and thus, charge against him sands proved. We rely upon 2008 SCMR 931.
13. The result of our above discussion is that the appeal of appellant Gulab Khan succeeds which is accepted, judgment and conviction recorded against him is set aside while that of appellant Rafique is dismissed being without force. Consequently, we acquit appellant Gulab Khan. He be set free forthwith if not required in any other case.